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How carefully do you maintain your company’s personnel files? If they are a mess and don’t include relevant information such as applications—or the information is scattered in “to-be-filed” piles—set aside time now to straighten them out!

Courts are increasingly ordering employers being sued for discrimination to turn over any arguably related files so attorneys representing disgruntled employees can go through them looking for smoking-gun evidence such as missing applications.

Recent case: After Joyce Duck retired from her teaching position, she said she would take a job coaching sports if a position opened up. Several years later, she learned about one such position and said she was interested. She never formally applied and soon learned that someone else had been hired.

Duck sued, alleging age discrimination. The school district said she never applied. Perhaps on a hunch, Duck’s attorneys demanded to look at the personnel files for anyone who had been hired. They were looking for applications because the district claimed Duck wasn’t hired because she didn’t fill one out.

The school district argued that personnel files are confidential. But the court ruled otherwise. It reasoned that the judge could look at the files before turning them over to make sure they were relevant, but that the files did have to be produced. Confidentiality doesn’t trump a former employee’s right to look for evidence proving her case. (Duck v. Port Jefferson School District, No. 07-CV-2224, ED NY, 2008)

Final note:
Those who don’t apply for a position usually can’t come back and argue that they weren’t hired or promoted. Even so, you can greatly strengthen your position if a failure-to-hire or failure-to-promote case does make it to court by instituting a simple rule: Everyone hired or promoted must first complete an application.

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